*1 676. Brookhyser.
Ebrite 244 S. W. 4-9577 22, 1951. delivered Opinion October denied November Rehearing A. Ulys Diclcson, Lovell appellant. and Price for Rex W. Ball, Perhins and E. J. for appellee. J. Novem- died intestate George Brookhyser
Holt, ber 22, 1949, survivors, widow, Susie, leaving had here. sisters, appellants George his brothers married, his first wife died having May twice August 1949. He married November Susie On attempted to con- 4, 1949, (then years age) George in Spring- Tourist Court” (“The real Gem vey tenants by from himself to Susie and himself as dale) the entirety. also owned a 1941 death,
At the time of his George certain household Susie goods. automobile and Dodge another, credit for receiving $295. traded the car for court, residence and furnishings She sold the tourist wife, Boone, and Elsie Arthur appellees, $10,000. for present in which filed June
The suit *2 George appellants alleged, from in “that tlie deed effect, entirety anas the or tenants Susie, and to himself pro- survivorship nullity; it that was was of estate the influence; that and undue coercion fraud, cured acknowledged and it should fact, in not, was deed the that the title to records; from the and be stricken appellants, subject only to the lands should be vested payment óf debts and the homestead and dower widow’s the estate.” Appellees general denial, with a and Susie answered alleged fee virtue of the above deed owned the she pleaded estoppel. and Elsie 1949, and of November purchasers they alleged that ivere innocent Arthur Boone consideration. for valuable the deed above
The trial court found George George the and “created an estate to Susie rights survivorship belonging subject to the de- that it was the intention estate, to said and George Brookhyser, to create estate ceased, to the fee. with the take survivor date de- finds further that on said “The Court George Brookhyser, delivered said to Susie ceased, accepted Brookhyser deed and re- and that said she W. possession real of said lands and mained aforesaid. George her husband, further finds that
“The Court estopped Brookhyser, he lifetime, in his would have County, Washington having died November question rights as an owner of said her Arkansas, plaintiffs, entirety, each that the and and estopped to claim heirs are likewise so them, as his any right, in and to above described title or interest ” real lands. estate and per- converted found that had
The Court also Susie value her use and its reasonable own sonal against was which amount decree entered $975, for appeal This followed. Susie. following The deed contained recital: abov$ George Brookhyser Brookhyser,
“That we, and W. Snsie for and in the consideration wife, sum One paid by Dollar and other Considerations, Value us George Brookhyser Brookhyser, and Susie W. Husband hereby grant, bargain do Wife, sell unto Brookhyser George Brookhyser, said W. Hus- Susie Entirety, Wife, band and the survivor and unto assigns, following their heirs and described _ land, Washington County, situate State of to-wit: Arkansas, (describing it). HAVE AND
“TO HOLD said TO lands appurtenances *3 belonging George thereunto unto the said Brookhyser Brookhyser, and Susie W. and Husband right survivorship Wife, with and unto and their heirs assigns, George Brookhyser And we, forever. the said Brookhyser, hereby and Susie W. covenant we are that lawfully premises; seized of land and said that same and we will forever unincumbered, warrant defend and legal against the title said lands all what- claims ever. Brookhyser, I,
“And the said Susie W. wife of George Brookhyser, in consideration of said sum money, hereby relinquish do release and unto the said George Brookhyser Brookhyser, and Susie W. Husband right survivorship and with Wife, or the survivor entirety, my right, all interest, title and dower convey my and homestead in and to said lands. day
“WITNESS hand and seal on 4th this Nov., (Signed) George Brookhyser (Seal) 1949. Survivor (Seal).” Susie The deed was recorded and there was evidence it that was delivered Susie. appellants’ George
We consider first contention that capacity lacked mental agree. to execute the deed. We cannot George There was evidence that while was bed- practically helpless physically, fast and was men- he was tally signed at the alert, time he the deed. Before its George requests made execution, several friend, for Springdale, Wiggins, dealer a real estate E.L. Wiggins prepare the deed. When to his home come copy George gave which to deed from him old came, Wiggins description information. and other relevant prepared After the deed. office returned to his then George signed Wiggins days, returned, a few days later, Wiggins A few it. to record and directed George it to Wiggins and returned the deed recorded significance some Of it to Susie. who delivered signed George “Survivor Susie” the deed fact that doing, that he was indicating what he was he realized probably survive perhaps would Susie death, near real estate. her to have he wanted him, testimony tending appellants to con- offered While say, appellees, evidence is when all the cannot we tradict findings court were the trial considered, preponderance against thereof. capacity, governing rule of mental this issue
On many In the this court. times announced has Humphrey, McKindley comparatively recent case of “If maker said: we 161 S. W. mental sufficient or other instrument has deed, of a will prompting, memory, capacity without to retain in his comprehend property, and to and condition of his extent upon disposing what whom, and to it, how he is *4 possesses mental ca sufficient then he consideration, pacity mental instrument. Sufficient to execute such concerning judgment ability a to exercise reasonable dealing protecting interests his own these matters person requires. If a has such all the law with another is capacity, or fraud, duress, in the absence of then, mental produced by whether mental weakness influence, undue through physical age infirmities will not invalidate old cases.)” (Citing by him. an executed instrument 2. appellants acknowledgment say that
Next, of no effect and and that the deed was the deed is void Washington be from the deed records should stricken County. is the well to this contention settled The answer unacknowledged good that an between the
rule
is
parties.
Criswell,
said in
v.
Act 86 of 1935 directly by a married man to his that a deed executed ‘‘ speci- conveying the interest wife shall construed as question The is whether this statute fied the deed.” permits already create land, a the owner of husband, entirety by conveyance tenancy a a to himself and wife. permit arguing In the statute does not upon appellants rely principally Stewart result Tucker, 125; S. W. 2d Weir 612, 188 Pegg, Pegg 33 R. N. Mich. 130 N. W. L. A., cited in cases. It insisted both these Arkansas compels language cases that the Stewart Weir by us to hold that effort to create an estate here the agree. cannot must fail. We In all three of the husband undertook these cases entirety by conveying tenancy wife to his create already in' land owned an undivided one-half interest complete evidently at him. Such variance *5 conception by an the en- the common law with theory tirety, that each at common law the since moiety. spouse and not a mere owned the entire estate point Pegg Michigan court stressed this Indeed, quoted approval. language case, and we its with Thus support this factor alone sufficient to the conclusion three reached these cases. appellants, empha- say
But, the earlier cases also requirement sized law the common of the four unities of possession. title, and All were interest, time, the unities patently present in the review, not three cases under since way wife’s undivided half interest could no be acquired said to have been at the same time the half as by By analogy interest retained it is now her husband. argued unity lacking, that here the for of time is also convey reason that the husband cannot to himself and acquired by so could have no new title his own virtue of deed. agree reasoning. complete
We cannot with A this given leading answer is what is now of In case re Klatzl’s majority 216 N. Estate, Y. N. E. 181. There a judges, Bartlett, Collin, Hisoook, agreed that under modern married women’s Cardozo, property tenancy may a acts create a entirety conveyance by a to himself and his wife. The argument unity presented same as to the of time was Judge there as here, but answered: “The hus Collin convey unity bahd legal did himself, not but to a entity which was the consolidation of and an himself other.”
The modern view taken the New York cases has spread rapidly jurisdictions. to other See annotations in 62 Among many A.L.B. and 137 A.L.B. 350. leading favorable comments from in the field students excerpt Tiffany (3d Éd.), Property, on Beal ‘‘ tenancy by may § 432: The view conveyance created the direct of the husband and wife owned one them themselves entirety appeals being logical just. tenants An recognized by is one law and upheld ordinarly with all its incidents, and to husband and wife creates such estate. It is the policy spouse of the law to accord to each free- absolute
682 with, property, separately this dealing and owned
dom arising unity interruption of no freedom entails spouse property marriage. owner the Nevertheless, entity legal person apart from the legal and distinct ais composed otherwise, If it were wife. husband and in com- not take as tenants his wife could permit carries out of the estate the creation mon. To conveyance, expressed in while to construe intention spouse property conveying as sole to one it as joint or as tenants grantee, tenants or to both as property conveyance judicial of the be a common, would expressed are contrary We intention.” owner’s reasoning no complete agreement and see with this directly parties why be able do not reason should undoubtedly through indirectly they do could that which a straw man. the device of
Affirmed. McFaddin dissents. Justice
Mr. (Dissenting). My dissent Justice McFaddin, F. Ed. majority opinion goes portion holds of the to that already property, owning can create that a husband, direct estate in such holding, has done wife. In so this Court to himself and subject; previous of our to all cases violence property. previous have become rules of these cases reasons for interested in the and incidents Those entirety may following consult cases of estates Eagle, v. 29 Ark. Branch 202; this Polk, Robinson v. Court: L. R. 324; 61 33 W. 30 A. Roulston 388, 424, Ark. S. Robinson, 66 50 Robertson v. Hall, 690; v. Ark. W. 305, S. v. 151 Ark. 883; Parrish, Ark. 112 W. Parrish 367, S. Dennis 152 Ark. 792; Dennis, v. 208 Ark. 2d 15; 188 S. Tucker, W. Stewart W. S. Ryan Roop, Weir 125; 916; 217 W. 435. 236 S. W. 2d There are Di Arkansas cases which are collected West’s other gest, § Wife,” “Husband As to always essential the creation an estate opin present we held—until have unity (1) ion—that “there must four co-exist unities, unity (4) unity (3) (2) time title. interest. *7 unity possession.” Ark. v. Tucker, 612, In 208 of Stewart quoted unities and 188 S. 2d we listed these 125, W. ‘“ owners That each of the is, further from C. 907: 33 J. by conveyed the must and the interest have one same the one and same act or to vest at instrument, same possession time . . . each must have the entire tenancy every joint parcel property held in the ” well as of the whole.’ repeatedly held the four unities—in- We have that possession-—must present before time be terest, title, an by entirety could Thus in estate be created. McGraw Berry, 452, 152Ark. held that 238 W. we where co-tenant an land a owned interest the and had all convey other land him the co-tenants the to wife, conveyance by such other did not create the co-tenants by present estate there an because were not the the four essential to such an create estate. unities
Again in v. Tucker, Stewart S. W. by entirety we that an held did not result agreement between a wife and her husband to pay- the effect that the husband continue would to make ments on a contract made with his and that the wife, get survivor as between husband and wife would fee.
Finally, recent of Wier case Ark. 2d we held that the execution by husband and wife of a deed to of land themselves owned husband could not create an entirety since the four essential unities, interest, time, possession, present. title and were not in a series Thus by entirety held cases, we have that an estate could except not be created when the title came to husband and person. present wife deed third from a Now—in the majority holding may case the the estate husband—already owner—conveying created holding overrules our his wife. Such himself and to previous cases. away pre- explain attempt these avoid or to
In an arguments: opinion majority two offers vious cases, (now says § majority 50-413 Act 86 of first, directly convey Stats.) allows the applicable 86 of Act here. act wife, such 1935 reads: property located
“Any of real deed of passage act, after executed State, in this directly woman married married man his wife conveying directly be construed husband, to her shall grantee interest the entire to the named such conveyed, interest grantor or the *8 pur- fully specified intents and to all in as deed, the poses not exist between did the marital relation as if parties deed.” the to such directly convey allowing to in a husband to
This Act, change creation the for the not essentials wife, does entirety, by the four which essentials are of an estate the conveyance is made not exist when the unities. These do wife. himself and owner, husband, direct from the by majority argument used The same now the case Wier v. stated answered in wherein this Court, Ark. 236 S. W. without said: recorded dissent,
“In attention is called to Act 86 the briefs which allows Stats., now in 50-413, found Sec. Ark. directly spouses other. From that to each conve3r by entirety appellant urges can estate Statute, by as is in this such involved be created entirety reject by An case. We contention. joint tenancy partakes the nature of a to the extent requiring four unities interest, the concurrence of the previously possession, mentioned; title time, question. did not these unities concur here in The interest of a husband the estate can conveyed to his of the said 86 of wife virtue Act holding Ryan Roop, was our such 1935; 699, 217 S. AY 2d anBut .the can only come into required existence when the essentials just are pointed observed, as is out Mr. Justice supra. in Stewart v. Tucker, Those did essentials Robins not exist in Stewart v. Tucker not exist in the and do ’’ case at bar. argument majority Therefore, the of the based on Act Brigham. 86-of 1935 was answered in Wier v.
Secondly, majority distinguish after-trying to supra, at Tucker, case bar from Stewart v. and Wier Brigham, supra, finally admits that this Court wants language to take “the modern view.” Here is of the opinion:
“The modern view New York cases has taken spread rapidly jurisdictions. (See to other Ann. 350.) Among many A. L. R. 518 and A. L. R. leading favorable is this from comments field students excerpt Tiffany Property .” Real . . taking this Now of “the modern view” fills me with great apprehension: “deliberately leaving for this Court Berry, holdings—McGraw old our Stewart v. Tucker Brigham for and Wier v. modern view” taken “the holdings—on necessity by the New York Our cases. of the existence of the four an estate essentials create entirety—have become a rule *9 lawyers laymen and and state; have conducted their deal justified expectation ings property on the that this rule of changed retrospectively. would not be 54 J. 1110 C. property: defines a rule of legal principle governing ownership
“A settled the property; highest of the and devolution decisions of the they court a state when relate to and some of settle law-directly principle applicable of local to title. In the plural, governing those rules the descent, transfer, property, sale of and the rules which affect the title possession and thereto.” public
If the should become dissatisfied with our adopt property rules of and should want to “the modern pass legislature stating view”, then can the Act 686 conveyance direct act, date of such the effective
from wife shall create to the husband from the hnsband legislature entirety. such enact the Should an estate only. prospectively operate But when it would a law holdings property previous on overrules its Court the effect adopts is rights “modern the view”, retrospectively. new- change effect holdings the The the law say previous were not holding that all the is to heresies. mere law, the but injustices example terrific
A classic changing this Court estate titles real be done can Weil, Co. v. property Carter Oil mirrored rules Briefly in that case 2d 215. 192 W. Ark. 653, many years this held Court for this situation: volved Collie, 103, v. in Cole as reflected 710, appeared in habendum if a reservation granting was in conflict with deed and of the clause Beasley But in was void. then such reservation clause, 2d Shinn, 1234, 131 A. L. R. 144 S. W. v. Ark. older v. cases overruled Cole Collie the Court only appeared gave reservation which effect to a n thehabendum clause though in conflict deed even Beasley granting words, In other v. clause. with rule of that had overruled the Court Shinn the existed in Cole Collie. v. Beasley Shinn, one of decision in
Before the lawyers thorough title State examined an most only a deed that had a reservation in which abstract lawyer, in reliance clause,- and the on the liabenckm page opinion wrote of the Court, of this authority v. Collie, Cole “Under abstract: opinion our reserva 198 S. W. Company Weil, But in Carter Oil tion is void.” Ark. Beasley we held that when W. 653, 192S. holdings Collie, then the old overruled Cole v. Shinn we heresy quoted and we mere Blackstone’s became a Commentaries: *10 former it found -that the decision
“For if be is unjust, manifestly it is not that such declared, absurd bad, that it was not that law, is, but law. a sentence was that it is not the established custom of the as has realm, previously determined.” opinion Thus lawyer of a had relied on our who own wrong through cases became no fault of his. Such a situation is any not one of. which court should boast. majority Yet the doing is thing the same in the case at Ark., Brigham, bar. In Wier v. 354, 236 W. S.
435, we said:
“In the briefs attention called is to Act 86 of 1935, in spouses now found § 50-413,Ark. which Stats., allows convey directly to each other. From that Statute, appellant urges entirety that an estate can be created such a in as is this case. involved We reject entirety par- An contention. joint tenancy takes of the nature of to the extent requiring the concurrence of the four unities of interest, possession, previously title and time, these mentioned; question. did unities not concur deed here -by of a can The interest the estate conveyed said wife virtue of the Act Ryan Roop, holding in 1935; such our v. W. 2d 916. But an
699, 217 S. required only essentials come into existence when the can just pointed Mr. Justice is out observed, are supra. Those essentials Tucker, in Stewart Robins exist do not Tucker and did not exist Stewart ’’ at case har. majority year in later,
Now than one less overruling v.Wier at in effect bar is case previous cases on the all the Stewart v. Tucker view”, adopting point, in the case “the modern and is Allwright, Ed. S. 88 L. U. of Smith dissenting from Ct. Mr. Justice Roberts previous holding this lan- cases used overruled which worthy repetition: guage, my de- instant “The reason for concern years ago, overruling announced nine cision, about bring adjudications tribunal into tends good for this ticket, as a restricted railroad same class *11 view only. day assurance, no have I and train may today opinion announced decisions, current justices who shortly repudiated and overruled no,t be subject. light . . they . have new deem by doubt regrettable marked an era ££It is greatest need steadfast whose confusion, era purpose, thought which has court, ness of adjudication, consistency exhibiting looked to hold even the balance a steadiness would opinion, temporary should and flows face of ebbs con breeder fresh doubt and now itself become stability public in of our mind as fusion in ’’ stitutions. changing our rules of make a habit we If may language retrospective quoted then effect, with applied day I Heaven forbid! to this Court. some seriously overruling in- matter cases feel on this so volving register property that rules of I this dissent.
Eades v. Joslin. 2d 623 4-9583 Opinion delivered November January
Rehearing denied